COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 78195 STATE OF OHIO, Plaintiff-appellee, cross-appellant JOURNAL ENTRY vs. AND JAMES K. STANSBERRY, OPINION Defendant-appellant, cross-appellee DATE OF ANNOUNCEMENT OF DECISION: JULY 5, 2001 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, Case No. CR-173311 JUDGMENT: Affirmed. DATE OF JOURNALIZATION: APPEARANCES: For plaintiff-appellee, cross- WILLIAM D. MASON, ESQ. appellant: Cuyahoga County Prosecutor KELLEY J. BARNETT, ESQ. L. CHRISTOPHER FREY, ESQ. Assistant County Prosecutors The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For defendant-appellant, cross- DAVID H. BODIKER, ESQ. appellee: State Public Defender TIMI TOWNSEND, ESQ. KORT GATTERDAM, ESQ. Assist. State Public Defenders Ohio Public Defender's Comm. 8 East Long Street, 11th Floor Columbus, Ohio 43215-2998 -2- KARPINSKI, A.J.: This appeal and cross-appeal arise from the trial court's disposition of a petition for postconviction relief ( PCR Petition ). The trial court vacated defendant's aggravated robbery conviction but did not disturb his aggravated murder conviction. Defendant James Stansberry appeals from the denial of relief from his aggravated murder conviction, whereas the prosecution appeals from the grant of relief from his aggravated robbery conviction. Defendant was one of three persons tried and convicted on charges stemming from the 1975 aggravated robbery of a convenience store and aggravated murder of the female clerk. He was not charged until approximately eight years later in 1982. On direct appeal this court affirmed defendant's jury convictions for aggravated robbery and aggravated murder. State v. Davenport and Stansberry (Sept. 29, 1983), Cuyahoga App. Nos. 46164 and 46216, unreported. Seeking relief from his conviction, defendant engaged in series of proceedings, including a parallel motion for new trial and PCR Petition. The motion for new trial and the PCR Petition were based on information obtained during the 1984 trial of a co- defendant and on records obtained by 1993. This court affirmed the denial of his motion for new trial in State v. Stansberry (Oct. 9, 1997), Cuyahoga App. No. 71004, unreported. The court, however, reversed the denial of his PCR Petition and remanded for further proceedings. State v. Stansberry (Nov. 13, 1997), Cuyahoga App. No. 71187, unreported. -3- Following remand, the trial court conducted an evidentiary hearing on defendant's PCR claims concerning the six-year statute of limitations and ineffective assistance of counsel claims. The trial court declined to review defendant's claim that the prosecution improperly withheld discovery from him in violation of Brady v. Maryland (1963), 373 U.S. 83, because the claim had already been raised in his motion for new trial. The trial court vacated defendant's conviction for aggravated robbery on statute of limitations grounds, but granted no relief from his conviction for aggravated murder during the course of an aggravated robbery. Stansberry appeals from the trial court's denial of relief from his aggravated murder conviction, whereas the prosecution cross-appeals from the trial court's order vacating his aggravated robbery conviction. Defendant's first assignment of error challenges the denial of the Bradyclaims in his PCR Petition on the grounds of res judicata because they had already been raised in his motion for new trial. His first assignment follows: THE TRIAL COURT ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING ON THE BRADY CLAIMS PRESENTED IN STANSBERRY'S AMENDED POSTCONVICTION PETITION. THIS ERROR VIOLATED STANSBERRY'S RIGHTS UNDER THE FIFTH, SIXTH, NINTH, AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 5, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION. This assignment lacks merit. Defendant argues the trial court improperly declined to hold a hearing on his claims that the prosecution withheld discovery from him during the original prosecution. He contends the trial -4- court did not consider the merits of the claim in his prior motion for new trial so that the claim was not barred by res judicata when raised in his PCR Petition. We note initially, however, that the trial court did consider the merits of defendant's Brady arguments when raised in his motion for new trial. His PCR Petition sought to rehash the same arguments. Although the trial court held that defendant's motion for new trial was untimely, the court also specifically held that the information allegedly withheld was not of such weight that a different result would be reached at a second trial. This latter finding addressed the merits of defendant's claims. This court discussed at length the evidence supporting defendant's claims in its opinion affirming the denial of his motion for new trial. State v. Stansberry (Oct. 9. 1997), Cuyahoga App. No. 71004, unreported at 3-4. The trial court simply found the recanted testimony to be incredible. Id. State v. Apanovitch (1995), 107 Ohio App.3d 82, involved a similar argument that Brady claims in a PCR Petition was not barred by res judicata despite the fact that he had previously raised the argument in prior federal court habeas proceedings. The defendant argued that the trial court improperly denied his PCR Petition because the federal district court did not address them on the merits and, instead, rejected them for procedural reasons. This court rejected the argument and held that the trial court properly held the claims were barred by res judicata. -5- As in Apanovitch, defendant took his chances by raising his argument in the manner he selected and was afforded a full opportunity to present them. Under the circumstances, defendant has not shown that the trial court erred or abused its discretion in its disposition of the Brady claims raised in his PCR Petition. Accordingly, defendant's first assignment of error is overruled. Defendant's second assignment of error challenges the trial court's decision not to vacate his aggravated murder conviction. His second assignment of error follows: THE TRIAL COURT ERRED WHEN, AFTER VACATING STANSBERRY'S AGGRAVATED ROBBERY CONVICTION, IT FAILED TO PROPERLY REVIEW THE RECORD AND DISCHARGE HIM FROM THE AGGRAVATED MURDER (FELONY MURDER) CONVICTION, BECAUSE THE RECORD CONTAINS INSUFFICIENT EVIDENCE THAT STANSBERRY HAD A SPECIFIC INTENT TO KILL. THIS ERROR VIOLATED HIS RIGHTS UNDER THE FIFTH, SIXTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION, AND OHIO REVISED CODE SECTION 2953.21. This assignment lacks merit. Defendant argues the record contains insufficient evidence to support his conviction for aggravated murder. He argues that once the trial court vacated his underlying conviction for aggravated robbery (on statute of limitations grounds), there was insufficient evidence to support his conviction for aggravated murder during the course of an aggravated robbery. As noted by the trial court in the case at bar, however, the Twelfth District Court of Appeals rejected this argument in State v. Brown (Oct. 29, 1990), Clermont App. No. CA89-09-097, unreported. Defendant was charged in the case at bar with -6- aggravated murder under former R.C. 2903.01(B), which provided in pertinent part as follows: No person shall purposely cause the death of another while committing or attempting to commit, or while fleeing immediately after committing or attempting to commit *** aggravated robbery ***. The jury found defendant had sufficient purpose to cause the victim's death when it convicted him of aggravated murder during the commission of aggravated robbery. Although the trial court found defendant's additional conviction for aggravated robbery to be time barred, his conviction for aggravated murder during the course of aggravated robbery was not barred. State v. Brown, supra at 3-4. The General Assembly has expressly provided that the offense of aggravated murder has no statute of limitations. R.C. 2901.13(A)(1). Aggravated murder is a specific offense that is different from the component charges of murder and the specified underlying felony. State v. Brown, supra. Accordingly, defendant's second assignment of error is overruled. The prosecution cross-appeals from the trial court's order vacating Stansberry's conviction for aggravated robbery. The prosecution's sole assignment of error follows: AS THE EVIDENCE DEMONSTRATES THAT STANSBERRY ABSENTED FROM THE STATE OF OHIO IN AN EFFORT TO AVOID PROSECUTION FOR THE INSTANT OFFENSE, THEREFORE TOLLING THE APPLICABLE STATUTE OF LIMITATIONS, THE TRIAL COURT ERRED WHEN IT VACATED STANSBERRY'S CONVICTION AND SENTENCE FOR AGGRAVATED ROBBERY ON THE BASIS THAT THE PROSECUTION FOR THIS OFFENSE WAS BARRED BY THE APPLICABLE STATUTE OF LIMITATIONS. This assignment lacks merit. -7- The state argues that the six-year statute of limitations for aggravated robbery was tolled because defendant fled the state of Ohio and went to West Virginia to avoid prosecution. Former R.C. 2901.13, as it was in effect on the date defendant committed the crimes in the case at bar, provided in pertinent part as follows: (A) Except as otherwise provided in this section, a prosecution shall be barred unless it is commenced within the following periods after an offense is committed: (1) For a felony other than aggravated murder or murder, six years; *** (G) The period of limitations shall not run during any time when the accused purposely avoids prosecution. Proof that the accused absented himself from this state or concealed his identity or whereabouts is prima-facie evidence of his purpose to avoid prosecution.1 Defendant and his co-defendants committed the aggravated murder and aggravated robbery at the convenience store on December 20, 1975. One week later on December 27, 1975, defendant committed another series of crimes against Pedro Hernandez, his sister's landlord. Defendant stole a car, and, according to his girlfriend's testimony, fled to West Virginia to avoid prosecution for the convenience store crimes. Defendant was arrested on December 30, 1975 and extradited from West Virginia to Ohio on March 12, 1976. 1 R.C. 2901.13 was amended in 1998 more than twenty years after the crimes in the case at bar. The prosecution's brief on appeal improperly quotes subsection (G) of the amended statute, which contains the term departed , rather than the version in effect at the time of the crimes, which contains the term absented as quoted above. -8- Defendant pleaded guilty to the Hernandez crimes and began serving a prison sentence in Ohio for them on June 7, 1976. He was questioned concerning the convenience store crimes during this time, but no charges were filed. Approximately four years later, on September 4, 1980, defendant was released on parole by the Ohio authorities and permitted to go to West Virginia. He was arrested for the convenience store crimes and his parole ceased on April 6, 1982. He was indicted on April 21, 1982 following his extradition back to Ohio. The prosecution argues that the statute of limitations was tolled for the entire period that defendant resided in West Virginia. Defendant argued that the limitations period was not tolled during the period when he was placed on parole in West Virginia because there was no evidence that defendant went to West Virginia at that time to escape prosecution for the convenience store crimes. The trial court found in favor of defendant. Defendant's purpose when leaving the state of Ohio was a question of fact for the trial court to determine. Although the prosecution presented a viable theory, and one that may have been persuasive to this court had we been the trier of fact in the first instance, we decline to substitute our judgment for that of the trial court. The prosecution correctly argues it made a prima facie case that defendant's purpose was to avoid prosecution simply because he absented himself from Ohio. R.C. 2901.13(G). Defendant was released on parole and lived at his mother's house in West Virginia -9- from September 4, 1980 until April 6, 1982. Under the circumstances, however, the trial court could properly believe the rebuttal of the prima-facie showing and conclude that defendant left Ohio to reside with his family rather than to avoid prosecution during this period. The record contained no affirmative evidence that defendant left Ohio, except for the original period from December 27, 1975 to March 12, 1976, to avoid prosecution for the convenience store crimes. Under the circumstances, the prosecution has failed to show that the trial court committed any error. Accordingly, the prosecution's sole assignment of error on cross-appeal is overruled. Judgment affirmed. -10- It is ordered that appellee recover of appellant its costs herein taxed. The court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. KENNETH A. ROCCO, J., and PATRICIA A. BLACKMON, J., CONCUR. DIANE KARPINSKI ADMINISTRATIVE JUDGE N.B. This entry is an announcement of the court's decision. See App.R. 22(B), 22(D) and 26(A); Loc.App.R. 22. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's announcement of decision by the clerk per App.R. 22(E). See, also, S.Ct.Prac.R. II, Section 2(A)(1). .